This blog presents news items and resources relating to trial advocacy and the legal system, with a focus on Washington State. It was developed to support the Trial Advocacy Program at the University of Washington School of Law, but now has a broader coverage and a wider audience. In addition to information about trials and trial practice, you'll find notes about appellate practice, the courts, access to justice, and related topics.

Monday, May 25, 2009

Earlier this month the first drug court in the USA, in Dade County Florida, marked its 20th birthday. Many newspapers observed the anniversary and published what are now fairly commonplace stories about successful participants—along with a new twist of possible drug court closures due to tough economic times.

Pierce County Superior Court Judge Michael Hecht is charged with felony harassment and misdemeanor patronizing a prostitute. King County Superior Court Judge James Cayce has been assigned to preside, to avoid the appearance of impropriety if the trial were run by one of Hecht's Pierce County colleagues. Hecht has moved for the trial to be moved out of Pierce County because of the coverage by the News Tribune. The prosecutor (assistant state attorney general John Hillman) has moved to admit evidence of uncharged acts to show a "common scheme or plan" (ER 404(b)).

He’s suing to stay out of Guinness | The News Tribune (AP), May 24, 2009. Jonathan Lee Riches, a federal inmate who says he has filed more than 4,000 lawsuits, is suing to prevent the Guiness Book of World Records from naming him as the man who has filed the most lawsuits in the history of mankind.

Friday, May 22, 2009

On the one hand, this is a funny law story -- man "just couldn't take" the boredom anymore and so didn't return after lunch and it turns out that (surprise!) doing that can land you in jail.

It also raises some serious questions. The judge emphasized that having a broad cross-section in jury pools and juries is essential to fair trials and that jury duty is an important, well, duty.

But face it: much of jury duty IS boring. I love having some time with nothing to do but read a book, but even I have felt restless and bored being trapped in the jury assembly room waiting to have my name called. The Seattle Municipal Court has done a lot to improve jurors' lot -- the room is at the top of the building with some views; on nice days jurors can go out on the deck; there are places to plug in laptops; some of the furniture is comfortable; people who work nearby can leave if they promise to be able to return within a short time.

What else could be done? DVD players (with headphones so as not to distract others)? Wii?

The jury assembly room is only part of it. What about the long stretches when something is going on in the courtroom and the jury is stuck in the jury room, not able to discuss the case and not able to do anything else? Is there a way to alleviate that boredom? A few video games, a deck of cards, ...?

The 14-count indictment charges that Bergrin, a former federal and Essex County prosecutor, engaged in a host of illegal activities from his Newark law office, including witness tampering, wire fraud, money laundering and drug trafficking.

They included orchestrating the murder of an informant who was expected to testify against his client in a federal drug case and attempting to hire a hitman from Chicago to kill an informant in a Monmouth County, N.J., drug case -- a killing that was never carried out.

Bergrin obtained exculpatory testimony from witnesses through bribes or threats of harm in nine other cases, and he assumed control of his client's drug trafficking operation after the client was convicted on federal drug charges, the indictment says.

The trial has drawn an audience of supporters of the defendant and the victim. One of the audience members was arrested on an outstanding warrant, and then the two camps began fighting. "Paul Sherfy, chief administrative officer for King County Superior Court, said additional court-security officers have been assigned to Superior Court Judge Regina Cahan's courtroom because of the fight."

In 1982 the New Jersey Legislature restored the death penalty, lifting the Furman stay of executions. 228 times prosecutors sought death. 60 times juries agreed, 57 cases were reversed at some point. 8 remained on death row at the time of repeal. None were executed.

On December 17, 2007, Gov. Jon Corzine signed a bill repealing the death penalty and replacing it with life imprisonment without parole for capital murder.

On April 14, 2008, principal actors in the 25-year drama gathered at Seton Hall Law School. The symposium reflected on the judicial, legislative, and popular efforts to sustain, limit, and ultimately abandon capital punishment. Five former Justices of the New Jersey Supreme Court (two of them former Chief Justices, and three of them former Attorneys General), leaders of the legislative effort, and members of the Legislative Study Commission which recommended repeal spoke. Former prosecutors and public defenders recounted the struggle in the courtrooms and on appeal. Sen. Raymond J. Lesniak presented a resolution by the Legislature honoring Celeste Fitzgerald and New Jerseyans for Alternatives to the Death Penalty. Gov. Corzine expressed his pride and personal commitment on the issue, urging others to follow New Jersey’s lead.

The proceedings and an introductory essay have been published by the Seton Hall Legislative Journal.

You can browse all Legislation, Litigation, Reflection, and Repeal: The Legislative Repeal of Capital Punishment in New Jersey abstracts in the SSRN database by clicking here: http://www.ssrn.com/link/Legis-Litigation-Reflect-Repeal.html

Monday, May 18, 2009

Digital Records Forensics. What is a record in the digital environment and why is it important? The Findings of the InterPARES project and the premises of the DRF project (Speaker: Luciana Duranti)Date: 5/18/2009 to 5/18/2009Time: 3:30 PM - 5:00 PMLocation: Mary Gates Hall 420

Under the aegis of two of her research projects, InterPARES and the Digital Records Forensics (DRF) project, Prof Duranti will demonstrate how information technologies have made it difficult to identify and establish the trustworthiness of records in various digital environments, and have added a level of complexity to the concept of record itself such that the legal system has serious problems in assessing digital documentary evidence.

Prof Duranti will begin her talk with a discussion of the concept of record as understood in traditional diplomatics and archival science, and then demonstrate its application to static and dynamic entities in digital systems by looking at selected InterPARES case studies. Finally she will discuss some of the legal consequences of the InterPARES project research findings and the way they are addressed by the Digital Records Forensics (DRF) project, for example, with regard to the hearsay rules.

Friday, May 8, 2009

Three faculty members from Seattle University have written a second edition of their trial advocacy textbook: Marilyn J. Berger, John B. Mitchell & Ronald H. Clark, Trial Advocacy: Planning, Analysis, and Strategy. Its companion book is Trial Advocacy: Assignments and Case Files.

Trial Advocacy: Planning, Analysis and Strategy, Second Edition is completely revised and updated reflecting today’s trial practice. Every chapter includes practical and conceptual instructions with realistic illustrations. Trial planning techniques and strategies using case theory and theme are explained in depth. Trial Advocacy presents premier trial persuasion principles and state-of-the-art technology used by practicing lawyers. It provides guidance for every phase from trial preparation to closing argument. The text together with an accompanying DVD showing model trial demonstrations of all aspects of trial from jury selection to closing argument, make this this an outstanding primer for law students and will serve as an indispensable resource for a continuing trial practice. A companion book contains Assignments and a CD with the case files.

The first edition came out in 1989, so an update is very welcome -- particularly with respect to technology used in practice management and trial presentations.

Throughout the book, students will find handy tips and checklists set off in boxes -- helpful reminders to people who are trying to develop their skills.

The supplement has dozens of exercises that can be used in a class or training session. It comes with a CD that has lots of documents connected with the exercises (pleadings, deposition excerpts, experts' CVs, photographs, etc.).

I like the "research memoranda" -- short discussions of the law in the fictitious jurisdiction where the exercises are set, so that students have the relevant rules of evidence and a summary of caselaw on issues like spousal privilege, prior convictions, duty to defend, or whatever. The preface says that faculty can choose to set the exercises in their own state and have students research the law. I'm all for more research experience for students, but I see an advantage to giving the students the law so that they can focus on the skill and judgment needed for making objections, arguing motions, and so on.

But wait, there's more!

Trial advocacy doesn't take place within the covers of a book, you know. Recognizing that, the authors provide a DVD so that you can see and hear a demonstration trial (or significant passages from a trial). You can see clips here.

Seattle lawyers and law students might recognize several of the actors. Lawyers are played by local lawyers -- and UW and SU Trial Ad instructors -- Lisa Marchese, Craig Sims, William Bailey (pictured above), Vonda Sargent, and Matthew Williams. The judge is played by Judge Dean S. Lum of King County Superior Court. The defendant is played by Tacoma District Court Judge Jack Nevin. Not only can you spot folks you know -- the fact that real lawyers are involved makes the mock trial very realistic. The script is by Ron Clark -- no slouch either, of course!

Just a week or two ago, a lawyer called me looking for DVDs of trials that he could watch to learn more about trial procedure and presentation skills. We talked about going to the courthouse to watch actual trials -- he agreed that that would be useful, but he felt he couldn't take the time from work and he could watch a DVD in the evening. He wanted actual trials, but this carefully edited DVD might be a much better start.

The DVD also includes a tour of the crime scene from another case, with the prosecutor's investigator walking the viewer around, showing where the witnesses were sitting, where the hallway was, and so on. This should be very helpful to students trying to prepare trial exercises for that case. Hats off to Seattle U's Films for Justice Institute, which did a fine job creating the films.

Two books, a CD, and a DVD. What else could you want? Well, there's a website with some additional information, including links to companies that prepare trial graphics, research sites, and other sites (including this blog).

Disclosing possible bias, I'll say that I've chatted with Ron Clark at the Book Store Cafe and I was happy to get review copies of the books in exchange for a promise to blog about them.

Those review copies will soon be part of the library collection so UW students and others in the Seattle area will be able to take a look. When they've been cataloged, I'll add the call numbers here.

Wednesday, May 6, 2009

The death of a woman who was killed while working undercover in a police drug sting has prompted Florida lawmakers to pass a first-of-its-kind law to protect confidential informants.

The law, which unanimously passed the Senate on April 30 and is on the governor's desk for approval, establishes uniform guidelines and written standards for the use of confidential informants by Florida police departments. Specifically, it requires law enforcement agencies to take into account the informant's age, maturity and substance abuse history to protect the informant from any potential harm.

Tuesday, May 5, 2009

Woody Allen is suing American Apparel for $10 million for its unauthorized us of his image (a still from Annie Hall) on billboards and a website. The company has apologized for the use. Allen says that the company's advertising is "sleazy." The company says that his image isn't worth $10 million after his scandals in the 1990s. So a question for the trial is: how much of his past can the jury hear about? Woody Allen Tries To Block Mia Farrow's NYC Testimony, Huffington Post, May 5, 2009.

At its Law Day event last night, the Washington State Association for Justice (formerly Washington State Trial Lawyers Association) gave its judge of the year award to Skagit County Superior Court Judge John M. Meyer and its excellence in journalism award to the Seattle Post-Intelligencer. See the press release. A bio of Judge Meyer is here. That page also has bios of 7 judges honored for 20 years of judicial service.